Legal Fiction

"It's a difficult thing to be right all the time." Rummy, 5/9/2006

Thursday, August 31, 2006

BE AFRAID

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I realize that the new Bush/Rumsfeld pushback is primarily about politics. And so I understand that they’re saying things they probably don’t really believe in their heart of hearts. But let’s put cynicism aside and take them at their word. Let’s assume that they truly believe everything they’re saying — from the fascism analogies to the idea that we’re fighting “terrorists” in Iraq. Under that assumption, the recent speeches (particularly Bush's speech today) illustrate again just how badly the people running our foreign policy misunderstand the nature of the terrorist threat against us. It’s hard to reduce it all to a soundbite, but if we are supposed to, you know, believe what they're publicly saying, it's rather frightening.

First, the fascism/Nazi example. The problem with using this analogy (or one of them anyway) is that it conceptualizes the terrorist threat as a state-centric one. I did a much longer post on this a few weeks ago, and it's a point that people have been making for some time now. But it's a crucial one that people must understand - modern terrorism is a post-nationalist threat, and one that more closely resembles the mafia than the SS.

The idea that al Qaeda is going operate state-run militaries to conquer territory is wrong because, among other reasons, that view applies a 20th century/Cold War lens to a 21st century problem. In fact, it’s that sort of state-centric thinking that got us into the Iraq mess to start with. As the UK bomb plot shows, invading countries and imposing new forms of government on them is not an effective anti-terrorism policy. Maybe such things are necessary to prevent genocide or gross human rights abuses, but they do nothing against post-nationalist terrorism.

Second is the conflation of widely diverse groups into one homogenous threat. In fact, this is probably the most disturbing passage in the whole speech:

When terrorists murder at the World Trade Center, or car bombers strike in Baghdad, or hijackers plot to blow up planes over the Atlantic, or terrorist militias shoot rockets at Israeli towns, they are all pursuing the same objective -- to turn back the advance of freedom, and impose a dark vision of tyranny and terror across the world.

Take your pick, this is either dishonesty or delusion. I hope it's the former — at least it would mean that the person with his finger on the button is grounded in reality. Anyway, the problem with this passage is that it treats all Muslims with guns as one undifferentiated threat — united in hatred of our freedom. But they’re not undifferentiated at all — Palestinian terrorism couldn’t be more different that al Qaeda-style terrorism. Similarly, Shia-Sunni (or Shia-Shia) warfare is a different animal from Hezbollah’s attacks on Israel. Again, if he really believes these groups are all “pursuing the same objective,” we’re all in big trouble. And if he doesn’t really think that, then he’s misleading the public.

Third, the flypaper theory:

We will fight the terrorists overseas so we do not have to face them here at home.

This is hardly worth taking seriously anymore, but I’ll say it again — this logic only makes sense if there are a fixed number of terrorists in the world. There aren’t.

Finally, as Ross Douthat said, the only potentially persuasive thing Bush said is that withdrawing would leave a failed state that could very well give rise to new terrorism. That may be true — but if it happens, it will be because of the invasion and the spectacularly misguided assumptions underlying it, and not because of the recognition that the invasion has failed. That's an important point for history to remember.

IRAN - How to Respond?

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I’ve already said it, but the Yglesias post I linked to earlier really lays out nicely why it’s deranged to be talking about war with Iran now. But a lot of influential people are doing just that. Assuming you agree that a strike is a bad idea, the million dollar question is how you stop it from happening. In other words, what’s the appropriate political response to the war drums? It’s not an easy question – and frankly, it has me worried.

The virtue of the pro-war argument is its simplicity. They have nukes. They’re crazy. We’ll die. That’s not a hard message to understand. More critically, it’s not a hard message to communicate in the age of mass media.

Most Americans (sadly) don’t watch Jim Lehrer’s Newshour. Instead, they get their news in quick bites – a newsclip here, a headline there, a radio newsstory in between. As Karl Rove (to his credit) understands, there is a high premium on simplicity and repetition. I’ve touched on this before, but because the structure of modern media is the way it is, the key to getting your message out is to make it a simple one that can be endlessly repeated.

One benefit of simplicity is that people are more likely to hear your entire message in the short amount of time they devote to consuming news. A second one is that it’s easy for sympathetic listeners and pundits to take that message and run with it without central coordination. And finally, through repetition, it’s more likely that casual news consumers will hear the message you want whenever they happen to tune in (that’s because it’s repeated over and over).

This was the beauty of the flip-flopper critique against Kerry that was repeated again and again. And that’s why the Bush team tried to squeeze so many of the news cycles into that simple narrative.

Turning back to Iran, the problem with the anti-war argument Yglesias makes is that it doesn’t lend itself to simple responses. Yes, Iran is working on a nuclear program, but it’s years and years away from any real capability. Yes, Iran is defying the UN now, but it’s certainly given signals that it wants normal relations. Yes, Iran’s President says unacceptable things, but Iran is a rational state that can be deterred from following through on them (see also Soviet Union, Khrushchev re: burying US). Yes, Iran’s leadership doesn’t like us, but their offensive military capability is non-existent and they have lots of rivals in the neighborhood. Yglesias lays it all out better (with links), and it’s a devastating critique. But it’s not easy to squeeze it into a 20-second sound bite in a political campaign.

And so that’s the issue – what’s the effective political response? There’s no easy answer. I suspect many GOP/CT-for-Lieberman candidates (with assists from the blogosphere and Weekly Standard) are going to be attacking with a very clear message – they’ll nuke us if we don’t attack. That argument has certainly worked before.

I’d welcome comments on this, but I think the political response among the chattering classes should be that Iran is not a threat. If you say they are, you’re wrong – or lying. And if you support strikes to fight this non-existent threat following the Iraq debacle, you should be mercilessly ridiculed. That’s a fairly simple response and it pretty much captures the heart of the objection – Iran is simply not a threat, and certainly not enough of one to justify a military strike anytime soon. And if you say otherwise, you have your facts wrong.

I admit that ridicule is not the most polite way to proceed, but these are high stakes world-historical matters. The trick here after all is to make an essentially defensive argument an offensive one. The pro-war camp is on the offensive, and the anti-war camp is trying to block it. And so the goal is to turn the tables by making it a reputational liability to support military strikes and to peddle “slam dunk” arguments about the threat.

But that said, I’m not sure politicians can use this strategy. If, for instance, Harold Ford got up and said “Iran is not a threat,” it would be demagogued by Corker and would come to define the campaign. Yes, it’s unfortunate that candidates would play Dangerous Liaisons with human life by using heavy-handed war rhetoric, but that’s a fact of life that needs to be accepted.

I wish I had a good answer but I don’t. If one candidate is willing to essentially lie about the scope of the threat facing America, you have to say “they’re lying” or there’s not much else to say. More precisely, that’s the only simple thing you can say. If you have to get into conversations about the need for patience and cooperation, you’re losing. The effectiveness of political responses is inversely proportional to their length.

And so I’m guessing the first strategy of Dems will be to avoid the issue. But that’s not a good strategy because it might get forced on them. So what is a good strategy? One possibility is just to say (diplomatically) that their opponent is lying (or “misleading the public”). That shifts the terrain from Iran to the credibility of the pro-war camp in the post-Iraq era. There they go, misleading the public about the threats we face without any evidence. Just like they did in Iraq.

The problem though is that it’s tough to say that when the headlines say that Iran is trying to enrich uranium – even if it’s only enough to make a Mickey Mouse watch glow for a bit. That's why it's critical to keep after the chattering classes to be honest about the scope of the threat.

Again, it’s not a simple issue. And until someone comes up with an answer, it’s politically rational for the GOP to go all in on Iran for the ‘06 election. And it might work.

WHY KARR-GATE MATTERS

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Though I loathe doing so, I’m going to talk about JonBenet today. Via Steve Benen, I see that the emerging conventional wisdom, according to Howard Kurtz, is that the Karr story will “instantly go[] down with the greatest media embarrassments in modern history.” I disagree — sort of. I mean, it’s certainly pathetic, but whether it’s an embarrassment depends entirely on your perspective. From the perspective of the 24-hour media, it's the opposite of an embarrassment — it’s a smashing success.

I used to think of the 24-hour media (and the equally sensationalist local media) as the epitomes of herd mentality. Or to use some more game theory lingo — information cascades. The idea is that individuals who aren’t informed (i.e., have imperfect information) take their cues from others, thus causing a “cascade.” For instance, if someone screams in a theater and a few people start running out, the rest of the theater wouldn’t necessarily be informed but would run out anyway. Same deal when uninformed people (like me) at a fancy dinner pick up whatever fork the first person picks up. The idea is that the early decisions of the few become the basis of the entire group’s decisions.

And that’s how I thought about these media frenzies (e.g., Karr, Iraqi WMDs, Michael Jackson). The media just looks at what the other guy is doing and follows their lead mindlessly. After a critical mass is reached, you get a frenzy. My fundamental criticism, then, was that the frenzies are irrational — i.e., they are based more on herd mentality and imperfect information than a rational assessment of what’s newsworthy (or accurate).

I don’t think that anymore. In fact, I think these frenzies are 100% rational from the perspective of the media. You’ve got to understand that the 24-hour news media is more corporate entertainment than pure journalism. I’m not necessarily criticizing — that’s just the nature of the beast. Lions kill zebras and eat them — that’s what they do and that’s the context in which their actions must be understood.

Similarly, the 24-hour media exists to get ratings and to make money. That’s what they do. Journalistic excellence would be nice, but that’s not the raison d’etre. The point is to get people to watch. And the things that make them watch are frenzies — e.g., Karr, wars, emergencies, terrorism plots, missing white blonde girls. The 24-hour media has a vested, rational interest in sensationalizing these stories. And so what appears at first glance to be herd mentality is actually calculated, savvy, ratings-increasing sensationalism.

Thus, from the internal perspective of the media, Karr-gate isn’t an embarrassment at all. It’s a job well done. Ratings are apparently up — and that’s the name of the game. The idea that MSNBC and CNN are going to go into some deep reflective period is just silly. They’ll cry all the way to the bank.

That said, the Karr frenzy is an embarrassment from an external perspective (i.e., from the perspective of the public). From this perspective, Kurtz couldn’t be more right that this episode was — like Iraqi WMDs — a journalistic failure of the highest degree. No countries got invaded, but the media dynamics are the same.

And that’s what’s truly disturbing about the Karr episode. Yes, that guy is a freak and we all enjoying laughing at the circus freak. But what’s troubling is that public knowledge relies to a large extent on an institution with a vested, rational interest in creating sensationalized frenzies unsupported by facts. Today’s Karr could be tomorrow’s Iran. As it’s confirmed again and again lately, the 24-hour media has little reason or incentive to throw water on emotion-stirring stories. And so, if the dominant headline became Iranian nukes next month, I have about zero faith that the 24-hour and local media would demand and report facts that would reduce the controversy or put the facts in the proper perspective. Again, it’s not that the media is stupid or corrupt — it’s just that sensationalism is their business. Lions eat zebras.

The only way to fix the problem is to make frenzies irrational. And the only way to do that is get to people to stop watching crap like this. Kurtz can complain all he wants, but if ratings go up, that’s all that matters from the media’s internal perspective. Sure, reporters will come out and say we need to reassess this or that, but as long it works, it will keep happening.

In that sense, it’s just like politics. If bad policies keep getting votes, they’ll continue. When they become electoral liabilities, they won’t.

Tuesday, August 29, 2006

MONEY TALKS

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I read Geneive Abdo’s article in the Post this weekend entitled “America’s Muslims Aren’t as Assimilated as You Think.” But, to me, the article made precisely the opposite point — American Muslims seem pretty assimilated. Or more precisely, they are not embracing radicalism or violence like UK’s Muslims. Contrary to what Abdo intended, the article illustrates merely that American Muslims — like American evangelicals — are embracing religion more openly these days. That’s not exactly a cause for concern — after all, that’s what America is supposed to be about.

The more interesting question is why American Muslims are so less radical than their UK counterparts. Although it’s not online, the paper version of the article included some charts that answered the question — money.

To take a step back, one of the characteristics of the old Left (i.e., the real Left, not the “Hillary Left”) was its elevation of economics (or class) above all else. Pretty much everything from law to culture to domestic relations could be reduced to money. The strength of this argument, however, was also its main weakness — it explained too much.

I’ve gone back and forth for some time on how central I think economics and class are to, well, everything else. My current view is that, even though the old Leftists elevated class too highly, people generally grossly underestimate the role of economics in explaining the phenomena they see. I don’t have much use for the old Left’s pre-scriptions being a good Clinton/Blair market liberal and all, but I think some of their de-scriptions are spot on. In short, I agree that money goes a long in describing what we see.

And I think the lack of US Muslim radicalism can be explained by looking at class. The charts in the Post made the following useful comparisons between US and UK Muslims:

College education. 59% of US Muslims have a Bachelor’s degree or higher (compared to 27% of the population). In the UK, only 12% do (compared to 17% of the population).

Income. 52% of US Muslims make $50K and above (compared with 45% of the population). Although there aren’t equivalent numbers for the UK, the chart indicates that UK Muslims earn 68% of non-Muslims and have the highest unemployment rate in the country.

I think that explains a lot, and much more than the ideological/culture argument does. After all, you have two similar religious minorities living in Western secular nations — but with vastly different levels of radicalism. Of course, correlation does not causation make, but I’ll stick with class until I hear a better explanation.

The truly interesting question, though, is not so much establishing that class matters, but why class matters. I’ve touched on this before, but I think it gets back to the idea of having a stake in the future — or in game theory-speak, to the idea of iteration and repeat-game scenarios. People with money and an education have a greater possibility of future economic and social benefits — i.e, they have greater incentives to stay “in the game” and within its rules. They know they’ll be playing future “games” and will have strong incentives to maintain their reputation to reap the benefits.

For example, take a well-to-do suburban kid and an inner-city kid. One avoids trouble in youth, the other doesn’t. Why? Conservatives would tend to focus more on individual merit and culture, whereas old-time Lefties would focus on economics. The latter would argue that the inner-city kid — facing a bleak future with no prospects — has no future benefits to keep him in line. Therefore, there is less reason to worry about one’s reputation. In economics lingo, “bad” behavior has fewer opportunity costs because there were no opportunities to begin with. If the suburban kid, by contrast, sells crack, then he loses his ticket to a good college and his ticket to future “games” (i.e., jobs, social relations, dating Comp Lit majors, etc.).

One reason I like thinking about this stuff from a game theory perspective is that it lets me be a materialist without embracing the more misguided aspects of the old Left’s idealism. Call it a “Third Way.” Conservatives argue that individuals are flawed and that culture matters most, and so economic reform doesn’t help much. Old Lefties (in the line of Rousseau), however, argue that men are bad because of economics and inequalities. Fix the inequality, fix the man. In short, man can be made good. (On an aside, that’s why Rousseau and the French Revolutionaries he inspired are the true intellectual ancestors of the neocons and the intellectual assumptions of the Iraq War).

The game theory approach sort of splits the baby. Contrary to conservative assumptions, economics is in fact the primary source of the problem. But contrary to old Left assumptions, fixing the economics doesn’t necessarily make the person better (I am, after all, a Madisonian pessimist on this stuff). It simply aligns individual self-interest with public self-interest. Giving someone an economic opportunity doesn’t make him a better person, it just gives him incentives to behave. Thus, the suburban kid (or his culture) isn’t necessary “better” than the inner-city kid. It’s just that his opportunity costs are higher for bad behavior. In other words, if he acts selfishly (i.e., in a way to maximize benefits to him), the public benefits as well. The suburban kid not selling crack is, in this sense, acting as selfishly as the kid selling crack. It’s just that society is better off with the former.

The upshot of all this is that if we really want to reform the problems facing the Middle East or even our urban inner-cities, we need to focus on economic reform first. Dreamy democracy promotion comes second. Before you can have the latter, you have to a population committed to stability and invested in the future. Our new allies in Sadr City aren’t exactly there right now.

Sunday, August 27, 2006

AND THE WINNER IS . . .

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I think John McWhorter (in today's Post) wins the award for the most disingenuous thing said today:

Similar insincerity is evident in the reaction to Allen and the macaca episode . . . . Imagine for a moment that Allen actually knew that a "macaque" is a kind of monkey, or that in French the term is sometimes used as an insult for North Africans (Allen denied having known about either). Who, then, believes that Allen would use the slur against an opposition campaigner aiming a camera straight at him?

The facts of the case would suggest that Allen just made up something silly on the spot [.]

Yeah, just some bad luck for Allen I guess. Who knew that his nonsense word just happened to be a French slur for North African Arabs. I mean, it's not like he knew French or had any North African connections or anything. It was just a Dr. Seuss word - sort of like Zeffer Ziffer Zaffer Zuff - that happened to be a well-known racial slur. It's actually Allen who is the victim here.

Friday, August 25, 2006

KATRINA TURNS ONE

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Now that I (finally) got some free time, I watched the first half of Spike Lee’s Katrina documentary — and it’s good. So good that I found myself getting viscerally angry again. The whole thing is so shameful — such a disgrace to America. In the old lefty sense, Katrina is the contradiction of America. And as I wrote at the time, it wasn’t just that the federal government abandoned thousands to wallow and die in their own shit for 4 days in blistering heat, it was that Katrina revealed the underbelly of America — the epidemic of poverty that we tolerate largely because we never have to see it.

So why does no one care?

Looking back with a year of perspective, what’s almost as shameful as the Katrina aftermath itself is how little political and social impact it seems to have had nationally. Yes, Katrina cemented Bush’s dive into the low 40s and it may prove to be the inspiration of John Edwards’ 2008 strategy. But it has not sparked a dialogue. It has not led to anti-poverty efforts. People don’t seem to be outraged by it. People don’t even seem to talk about it. Like impeachment, it’s off the political radar. I thought it would have larger repercussions. And so did David Brooks.

So the million dollar question is why. One explanation — the most disturbing — is simply that Americans don’t care. For whatever reason, ending poverty and reducing inequality simply isn’t a priority for Americans as it is some post-industrial European and Asian countries. That itself raises the question of why. And to that, who knows. Maybe America is more atomized and doesn’t see the consequences. Maybe getting rich is simply more ingrained in the culture here. Maybe people aren’t taught basic economics in school. I don’t know.

Whatever the reason may be, I think that one part of it has to do with the structure of modern media and communications. More specifically, I think it has to do with Mickey Kaus’s infamous Feiler Faster Theory — the idea that modern up-to-the-minute media (24-hours news cycle, blogs, etc.) speeds up everything and shortens the life of political trends.

I think this principle applies to more than just political media. As I’m guessing is explained in the book Faster, everything is accelerated these days — or at least it seems like it. I think there are a number of factors causing this perceived acceleration. First, people (particularly urban knowledge workers) are putting borderline-insane demands on their time. People work so hard for so long that the amount of free time people have is, relatively speaking, much smaller. So, a lot has to be squeezed in to an ever-shrinking amount of leisure time.

Relatedly, modern communications (emails, text messages, IM) reflect and reinforce the go-go-go speed of modern life. And, while convenient, they extend work responsibilities into the private sphere more than ever (again shrinking the amount of time for leisure, reflection, dialogue, etc).

My point is that the lack of outrage over Katrina is a consequence of the Feiler Faster Theory. In America, everyone is outraged for fifteen minutes. It’s not so much that they approve of what happened after Katrina. But people are busy and don’t talk and don’t reflect — and so the outrage slowly gets lost in the shuffle. And then you see an ad for a Spike Lee film and you find yourself saying, “Oh yeah, New Orleans got destroyed last year.” And then Spike Lee shows you the bodies floating and it slaps you from your Blackberry, forcing you to stop and think about what was allowed to happen there.

In some respects, though, the acceleration is good. Some trends and news stories are so stupid that it’s refreshing to know they’ll die off in a few days (see, e.g., the Ramsey stuff). But in other respects, it’s very bad. In particular, the biggest “sin” of modern high-speed life is that it lets the really big mistakes off the hook too easy.

For instance, Katrina was a profound event. It should have sparked a new political dialogue and widespread outrage at the incompetence and cruelty. The shame of it should have made us look inward at the inequality we tolerate. But these sorts of things don’t exactly lend themselves to IMs — and they require more than a couple of days of CNN stories. They require reflection and long-term dialogues (the type that ultimately lead to new political efforts). But such things just aren’t possible. People don’t talk. People don’t reflect. There simply isn’t time.

Same deal with Iraq. The magnitude of our colossal error should be evident to everyone by now. I’m not being overly dramatic when I think that Iraq should — like Vietnam — linger in people’s consciousness for decades. But I’m not sure it will. In fact, if we pulled everyone out tomorrow, it would be forgotten by the public in a year. People just don’t take the time to reflect on the scope of the failure (which is easy to do when there’s no draft). Maybe they never did, but it just seems worse lately. I mean, the fact that elected officials can even consider striking Iran and not get destroyed at the polls is pretty telling that Americans’ attention span approaches zero. The failures of our Iraq policy seem to go in one ear and out the other. (And let’s not forget that Bush got elected after the failure was widely known).

And that’s what was so frustrating about watching the Spike Lee film. It makes you realize that about 1,557 people died in vain.

Thursday, August 24, 2006

HISTORY IS HARD

I've sometimes worried about how President Bush can withstand the Washington snake pit and deal with a daily barrage of hate from the ignorant left that, in my opinion, dwarfs in both volume and injustice the abuse directed against any prior President.

Monday, August 21, 2006

DON'T LOOK BACK IN ANGER

How Iraq got to this point is now an issue for historians (and perhaps for voters in 2008); what matters today is how to move forward and prepare for the tremendous risks an Iraqi civil war poses for this critical region.

Sunday, August 20, 2006

RESPECTING THE RULE OF LAW

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Glenn Greenwald and Orin Kerr are debating whether (and to what extent) the Court’s weak legal reasoning actually matters given that it (according to Greenwald) reached the correct legal result. I’m going to have side with Kerr on this one. In fact, the implications of Greenwald’s argument are not only fairly radical, but his argument fundamentally contradicts his criticisms of the Bush administration’s disregard of the rule of law. Greenwald is essentially arguing that we can ignore the rule of law to fight ignoring the rule of law.

Don’t get me wrong, I’ve enjoyed reading Greenwald for many months now. He’s been doing yeoman’s work in casting light into the nether-regions of the Right blogosphere, and in passionately and tirelessly defending the rule of law. And that’s why I found the post disappointing — and more of a retroactive justification of a favored result than something he would accept ex ante. (For instance, I’m guessing he’d be upset if a conservative judge acted like this).

The gist of his argument is that we can ignore bad legal reasoning if the ultimate result is legally correct. He hedges and qualifies here and there, but that’s the obvious take-away. He explains:

There is a fundamental difference between (a) a judicial ruling which reaches the correct legal conclusions but explains and/or analyzes the issues poorly, and (b) a judicial decision which reaches the wrong legal conclusions by using poor legal reasoning, but nonetheless produces desirable political or practical results. The decision from Judge Taylor is in category (a), not category (b) . . . . The point is that, in the scheme of things, the quality of the judge's opinion is entirely inconsequential both in terms of the ultimate outcome of this case (which will be decided by a higher court) and in terms of the systematic law-breaking powers this administration has seized.

I have two criticisms of Greenwald’s argument — one narrow and one much broader.

The narrow criticism is the idea that the court reached the “correct” result, which is the assumption on which his entire argument rests. In short, I reject the notion that a correct result even exists at this stage in the proceeding. Given the practically non-existent factual record, the Court simply isn’t in a position to make any ruling, correct or incorrect (particularly on the constitutional issues).

That’s why it’s overly-generous-to-flatly-inaccurate to say that the court simply “explained or analyzed the issues poorly.” The Court did more than that — it ignored the law to reach a desired result that may or may not ultimately be supported by the record. It would be different if the Court had put forth a good-faith effort and made a ruling in a procedurally and legally proper way. Then, yes, that might be a “correct” result that could be affirmed on alternative bases. But that simply didn’t happen here. The Court offered sweeping advisory opinions on numerous fact-intensive constitutional disputes. To say this is just wrongly criticizing the "quality" of the opinion obscures the more fundamental error.

Law is very much like science in that its underlying assumptions are rational. Accordingly, both scientific and legal conclusions rest upon empirical foundations. In science, you propose a hypothesis and then test it. The “result” of your test is meaningless unless it has a factual predicate.

Same deal with law. We can argue over beers about legality and constitutionality, but things are different in the realm of formal legal proceedings. There must be an established factual foundation supporting a court’s ruling. For that reason, a “correct” legal result is necessarily and ALWAYS intertwined with a factual record — indeed, you should conceptualize them as a unified concept, sort of like “mind” and “body” aren’t actually distinct concepts.

What I’m getting at is that (logically speaking) it’s meaningless to say that the First or Fourth Amendment was violated in the absence of a factual record (or on the basis of a tiny fraction of what the ultimate record will be). It’s like dividing something by zero. Constitutional violations don’t exist in an abstract vacuum. They only exist in relation to some underlying factual foundation.

And so that’s the first problem — it’s impossible to say that the Court reached the “correct” result. The correct answer is that there is no answer right now — in the context of a formal legal setting, that is. Thus, to say the opinion is ok because the Court reached the correct result on the constitutional issues isn’t so much wrong as it is impossible to prove or disprove. The quality of the reasoning is beside the point.

But the bigger problem is Greenwald’s willingness to ignore civil procedure and legal authority for the sake of getting the right result. What’s particularly problematic is that it mirrors all-too-closely the practices of the administration he’s so eloquently criticized.

For months, Greenwald has been (rightfully and powerfully) arguing that the rule of law should be respected. But the rule of law is essentially about respecting procedure — i.e., an action must take place within the bounds of established legitimate procedures. What Greenwald is arguing is that because the court got the right legal result, we can ignore the fact that it essentially tossed out the rules of civil procedure and proceeded to rule on major constitutional issues both without a factual record and with jibberish dressed up as legal analysis.

The administration has been defending the NSA program with similar logic. Because they think it’s the right legal result (i.e., they’re legally right to do what they’re doing), who cares if they’re blatantly and openly ignoring FISA? The administration says that because their decision will get upheld on alternative grounds, they can ignore the applicable law.

In short, Greenwald’s argument seems to contradict his blog’s raison d’etre. And that’s a shame, because few people have been making the case better than Greenwald.

I mean, under Greenwald’s view, why even have a district court system at all? Why not just ask the Judge to give a thumbs up or down based on no facts right after the complaint is filed and then let the appellate courts figure it out? Most obviously, it’s against the law. And from a policy perspective, that law is a good thing. Maybe it’s true that district courts write bad opinions — and maybe the appellate courts often ignore them. But if they do nothing else, district courts establish the record. They let parties present facts and narrow the range of disagreements — and they also help the higher courts do their job by passing on the legal issues first (much like a putter who sees someone putt before him gets a better sense of the break).

For that reason, civil procedure — like so much of constitutional law — is information-producing. The confrontation clause, the case-or-controversy requirement, grand juries, the right to an attorney — these protections combine to ensure that decisions are based on facts and that facts are generated. Civil procedure is the same way — it’s set up to help judges make reasoned, informed decisions by crafting a structure that generates information in an adverse setting. Ignoring it is not only illegal, it’s bad policy.

And that’s what so potentially radical about what Greenwald is saying. He’s adopting a result-based jurisprudence untethered from facts and fact-generating procedures. Look, I think and hope the program is unconstitutional, but I don’t know all the facts yet. Maybe it’s just a violation of FISA and nothing more — the constitutional answers depend on the facts and the intersection of those facts with text, precedent, and policy.

And on a final note, the Court’s opinion undermines the effort to bring this program within the law. When and if courts strike down this program, it’s vital that any decision be seen as a legitimate one compelled by law. Indeed, given the politicized nature of the program, courts must be double-super careful to ground their decision in a careful legal analysis with a developed factual record. To just jump the gun and rule on all the constitutional issues within months of the complaint (and prior to discovery) makes it appear that the Court acted politically. And that perception will stain and color perceptions of future decisions.

Friday, August 18, 2006

MORE NSA

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Ok – I’ve looked over the briefs (on PACER) and have come to the conclusion that the opinion is even more inappropriate than I thought. Because a lot of people disagree, let me spell out the procedural and legal defects a bit more clearly. (Also, some of the briefs are here).

What the Case Did

Remember that the case didn’t merely find that the NSA program violated FISA. It also ruled conclusively that it violated the Fourth Amendment, the First Amendment, and the separation of powers doctrines. In other words, it did the reverse of what courts are supposed to do — it went out of its way to reach the constitutional issues. That’s a big no-no.

Why That’s Inappropriate — Part 1 (No Briefing)

Putting everything else aside, the Court essentially ruled on these constitutional matters without giving the government a chance to brief them. If you review the government's briefs, you’ll see that they focus on state-secrets privilege issues. And that makes sense. The initial question — and the one raised by the government’s motion to dismiss — was whether the case should proceed at all. Thus, the government’s briefing focused on these threshold issues and not the actual merits. And that's normal (and that's exactly how the Supreme Court handled its post-9/11 cases). To the extent the government focused on constitutional issues at all, it was in the context of arguing that classified documents were necessary for certain claims (which is why the claims must fail).

It’s pretty clear that the government never dreamed the Court would resolve the merits of the case. In the government’s opposition brief, they spent all of two pages (at the end) on whether summary judgment on the constitutional issues was appropriate. Instead, they spent their time arguing about standing and classified state secrets — as they should have.

At the very least (just as a matter of professional courtesy), the Court should have allowed a new round of briefing on the merits of the constitutional issues before deciding them.

Why That’s Inappropriate — Part 2 (No Facts)

The strongest potential counter-argument I read was that there were enough public facts and admissions for the Court to rule on these issues. Several commenters raised this argument too. Even though this is the crux of the debate, I think that argument is wrong, and for several reasons.

First, some is not the same as all. The fact that some material facts were public knowledge doesn’t meant all of them were. Here’s an example. Let’s say I shoot someone and get charged (or sued). The prosecutor (or civil litigant) says “He shot him. He admits it. Everyone saw it. Give me a verdict (or summary judgment).” I can respond, “Yes, I shot him, but he was coming at me with a knife.” That additional fact (that he had a knife) is absolutely vital to the final judgment. And to decide the case without considering that fact would be a significant error.

And that’s exactly what the government argued. You need to hear other facts before making these constitutional decisions. You need to understand the threat we faced, what exactly we did, etc.

Second, the fact that one party says the facts are undisputed doesn’t make it so. The ACLU's "undisputed facts" are a bunch of scattered quotes from different federal officials in different settings (including press conferences). The government argues that many of these quotes are taken out of context and don’t stand for what the ACLU says they do. Regardless of who’s right, it’s the factual dispute that matters at this stage in the proceeding.

To take a step back, I don’t want to lose sight of the true absurdity of this decision by getting too far in the weeds. The Court (in the pre-discovery stage no less) decided sweeping constitutional issues based on some scattered quotes selected by the ACLU and, at times, specifically challenged by the government. Who’s to say the government couldn’t come up with different quotes making the opposite point just as well? Again, you can’t just walk in and say, “here are some facts, but don’t listen to anything they say.”

Constitutional Decisions Turn on Facts

If you go doctrine by doctrine, you’ll see just how outrageous it was for the Court to have ruled on these issues. Let’s start with the APA violation (which is a statutory one). The Court reasoned that the NSA program violated the APA because . . . well, we don’t know. It just does apparently. The APA was never discussed or analyzed or even referenced. The Court just concludes on p. 42 that it’s violated, but the only other reference to the APA is in the intro on p.3. I hope I’m wrong on this, but Ctrl-F rarely lies.

Next, Fourth Amendment. I mean, you can’t be more egregiously wrong than the Court was in ruling that it had all the facts it needed for this decision. Fourth Amendment reasonableness is one of the most fact-intensive inquiries in constitutional law. In fact, as Orin Kerr has explained, it’s at least possible that the Fourth Amendment doesn’t even apply to international communications (I disagree with that view from a policy perspective, but the precedents are out there). But again, we know very little about the specific facts surrounding the monitored calls or even whether the individual plaintiffs’ calls were in fact monitored. It’s all allegations at this point.

Next, First Amendment. I won’t get into all the doctrine, but one of the ACLU’s arguments was that the program is not “narrowly tailored” to the government interest (p. 39). The Court apparently agreed, though it’s hard to know in its two-page, block-quote-heavy analysis. I wonder though, how exactly does one decide that a program isn’t narrowly tailored without knowing all the material facts? Can you rely just on the selective quotations from one party?

It’s hard to express just how procedurally and legally wrong all this is.

What Should Have Happened

Personally, I think the Court should have said (1) the standing showing is good enough for now; and (2) your privilege claims are not strong enough to scuttle the complaint. Then, discovery would have proceeded, which is what happens almost 100% of the time that courts deny motions to dismiss. At that point, the Court could have made it clear that the government can only rely on facts it’s willing to disclose. Then, the government could decide whether to waive the privilege and provide this information - or take its chances by keeping this information from the Court.

At the very least, however, if the Court wanted to proceed to the constitutional issues (which it shouldn’t have done), it could have at least asked for briefing. Courts just don't do jump the gun like this, particularly on matters this important.

A LEGAL ATROCITY

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I’ve been really busy at work, and I haven’t had that much time to look over the NSA opinion, so what I’m about to say may be subject to change when I get a better grasp of the procedural history. [ed. You left one corner of your ass uncovered there buddy. Me: I uncover it by the end.] But based on my initial reading, this opinion is an atrocity. I hate to say it because I’m sympathetic to the result, but from a legally technical standpoint, this opinion is premature, unsupported, and in violation of elementary civil procedure.

You really need to understand some basics of civil procedure to see how inappropriate this decision was (which is even more inexplicable given the high-level stakes). To be grossly, grossly simple, litigation has three major stages: (1) the pleading stage; (2) the discovery stage; and (3) the trial stage.

For instance, let’s say I file a complaint against Wal-Mart for violating the “don’t be evil” statute. That complaint is a pleading (Stage 1). After that stage, I need to gather facts — e.g., I need to request Wal-Mart’s internal emails, to seek depositions, etc. That’s Stage 2 — the discovery stage (i.e., the “learning the facts” stage). Finally, whatever factual issues remain unresolved get resolved at trial.

A lot of litigation is about getting through Stage 1. That’s because discovery is a costly, tedious, time-consuming process that often results in the disclosure of embarrassing information. Defendants desperately want to avoid it. That’s where the “motion to dismiss” comes in. Parties file motions to dismiss before discovery starts. If you lose at that stage, you don’t have to do anything — no doc review, no depositions, nothing. You’re free. If you lose your motion to dismiss, however, discovery (Stage 2) begins (which reallocates settlement leverage, if you’re really interested).

The monkey wrench here is a concept called “summary judgment,” which can technically happen at any stage. It’s the resolution of a legal issue where no (material) facts are in dispute. For instance, let’s say that Wal-Mart and I both say (or stipulate), “Yes, all parties admit that Wal-Mart locked its janitors in. We simply disagree about the legality of the lock-in, Your Honor.” Because there are no facts in dispute, the Court can decide whether that action legally violates the “don’t be evil” statute on summary judgment.

Summary judgment, however, is never appropriate where there are ANY material facts in dispute. It doesn’t matter how lopsided the two sides’ arguments may be. For instance, let’s say Wal-Mart gets caught on film locking janitors in and giving high-fives after they do it. If they deny it in court (those were, like, other kids), that’s a factual issue and summary judgment is inappropriate. In short, if there is any factual dispute, summary judgment is not appropriate. And unless it’s a frivolous case, courts are reluctant to grant summary judgment at the pleading stage for the simple reason that no one knows any facts yet (because discovery - Stage 2 - hasn’t happened).

From what I understand, the complaint (the very beginning of the pleading stage) was filed in January 2006. And the government filed a motion to dismiss. That means they were right in the middle of the pleading stage, which means there had been exactly zero discovery, or fact-finding if you prefer. (The documents the Court did review related to the government’s state secrets claims, but shouldn’t be confused with so-called “fact discovery.”). To essentially resolve this kind of case on summary judgment at the pleading stage is highly unusual — and highly inappropriate.

Again, what the Court basically said is that (1) there are no material facts in dispute; and (2) based on those undisputed facts, the NSA program violated the First and Fourth Amendment, separation of powers, etc. There are a number of problems here:

First, First and Fourth Amendment claims are highly-fact specific. The fact that there is no warrant doesn’t resolve the case. You have to determine if the factual circumstances justify an exception. And that requires discovery.

Second, the Court’s reliance on only “publicly released” facts is almost absurd. Just because they’re public doesn’t mean they’re right. Do all parties agree on 100% of those public facts? The government should be is allowed to probe plaintiffs and plaintiffs’ witnesses in a deposition. The government should be is also allowed to offer experts explaining those “public” facts in more detail. In short, relying on public facts isn’t anywhere close to a valid legal justification for this premature ruling.

Third, the government’s best argument for the state secrets privilege (which I’m skeptical of, but will stay agnostic for this post) is that the privilege prevents the government from presenting its own (classified) exculpatory facts. The plaintiffs tried to avoid this privilege by saying, “we won’t seek any classified information but will rely only on public facts.” Again, that’s not enough for the reasons I just explained. But even putting that aside, presenting facts is not a one-way street. The government gets to do it too. Think about it — can I walk into to court and say “he stole from me and it’s in the public record, so decide for me but don’t let him talk or present any evidence.” That’s basically what the Court did today.

And so, this is the most ridiculous statement of the entire opinion:

Indeed, the Court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the TSP [i.e., the NSA program].

That sums up my problem with this opinion. The Court — in its infinite wisdom — decided prior to any discovery that it had seen enough facts to determine that none of them are necessary to any viable defense that may or may not be raised. That’s outrageous.

You know, I really hate to be this harsh, particularly given that the Malkin/Limbaugh hyenas are going to attack the judge. But this is not how you do this. I think the NSA program is illegal too, and my sympathies for the administration are fairly well known. But this sort of opinion plays right into the hands of conservative critics who say liberal judges play politics. I don’t think “liberal judges” do, but this one did.

This is pure naked politics dressed up as law. It is an insult to the legal system. And the Sixth Circuit is going to squash it like a bug.

Thursday, August 17, 2006

DOES HEZBOLLAH PROVE GLENN REYNOLDS RIGHT?

Although I haven’t read Glenn Reynolds’ “An Army of Davids,” I’ve heard nothing but good things about it. So here’s my question — does Hezbollah’s military success vindicate Reynolds’ theories?

Again, I haven’t read his book. It’s possible he discussed the implications of his theories to the “network warfare” practiced by Hezbollah, or to the “network terrorism” of al Qaeda. I did a few googles but only saw one person making the link between Reynolds’ book and Hezbollah, so I’m hoping this link hasn’t been covered extensively.

As I understand it, Reynolds’ basic argument is pretty much summed up in his subtitle — the combination of technology and markets are enabling individuals to compete with much larger entities (e.g., corporations, media, etc.). Reynolds’ focus is on the media, but the theory goes far beyond that.

I’m sure Reynolds gets into this, but the reason lowly individuals are capable of competing on this level is because technology has exponentially lowered various types of costs associated with the action or service — e.g., lower start-up costs; lower information costs; lower operating costs; lower communications costs.

Blogs are a great example. I’ve been reading Paul Starr’s “The Creation of the Media: The Political Origins of Modern Communications,” which describes (among other things) the rise of newspapers in America. One point is that technology (and American political choices) lowered the costs of starting a newspaper and they proliferated. But, starting a newspaper still required a substantial capital investment. Early newspapers also had to enter into arrangements with certain associations (precursors to the modern AP/Reuters organizations) for news. These costs, of course, are still around today for people who want to start a legit newspaper.

Compare that to blogs. My blog cost me exactly zero to start and costs me zero to maintain (other than lost eyesight/sleep). In addition, the Internets (plus the fair use doctrine) gives me access to, as Reynolds says, all the world’s knowledge for the price of a broadband connection. And finally, technology allows anyone anywhere to visit my little operation here.

Essentially, this is capitalism without the “capital.” Obviously, I realize that it’s actually Google/Blogger providing the service, doing the investments, etc. But it’s still true that my various entry costs were practically zero. That’s something very novel in the history of the media, and even man.

According to the reviews I found, Reynolds provided more examples. For instance, he explained that technology allowed more people to make beer at home, which forced “Big Beer” to make better beer. And I think there’s little doubt that blogs have made “Big Media” take their fact-checking a bit more seriously.

But anyway, it seems to me that these theories can be applied to the recent Israel-Lebanon war. Hezbollah was, in a sense, an army of Davids. Technology dramatically lowered its costs, which in turn allowed it to mutate into an effective horizontal network. The IDF, by contrast, is “Big Military” — centralized and dependant upon massive up-front investments of capital and manpower. Hezbollah, however, is the opposite. Technology has lowered the costs of becoming a military threat. For instance, the weapons are very mobile and can be moved around. As I read somewhere, a Hezbollah “soldier” can walk down the street, set up the missile, and go home and fire it while watching TV. Thus, the “per-strike” costs are much lower than an IDF strike. In addition, communications technology allows small cells to operate independently of central command (which also, from an economics perspective, cuts costs). And because there is no head, it is almost impossible to destroy.

Al Qaeda is very similar. It too is a “network” — indeed, the very name “al Qaeda” gives the false impression that it’s a hierarchical entity. It’s more like software. And the consumers of al Qaeda “software” benefit even more from communications technology than Hezbollah soldiers do. Quite literally, anyone with a broadband connection can become a terrorist. They can learn tactics, bomb-making, etc. from militant Islamic websites. And if you look at the other side of that coin, it’s also easy to distribute such knowledge. Someone with real terrorist training at a camp or in Iraq can very easily spread his knowledge across the Net.

Of course, the “Big” entities have a lot of advantages. The NYT is still a lot more influential than, say, me. And the IDF can do far more than the Hezbollah army, which of course depends on some "Big" entities for support. But Reynolds’ theory is definitely on to something interesting here — and it's certainly disturbing when applied to the new age of network warfare.

Wednesday, August 16, 2006

EASY LISTENIN'

Tied up tonight with work. To tide you over, I'll leave you with the warm, smooth sounds of NRO's groovin' Mark "Disco Chillin'" Levin:

- 8/14 - It's good that Allen has a mean streak, if in fact he does — enough compassionate conservatism.

- 8/14 - The enemy's propaganda machine is running at full speed today. See this editorial in the New York Times.

- 8/13 - We simply cannot win this war if we don’t have the will to destroy the terrorists and the regimes that support them.

- 8/9 - I would like to encourage the French Democrats (aka Moveon.org, George Soros [ed.- not French], and their ilk) to continue their purge of Democrats who supported the war.

- 8/9 - There's something very French about the modern Democrat party ... or is that Vichy French? It's the party of Jim Moran; John Dingel; the late, great Cynthia McKinney; Robert Byrd ("the Conscience of the Senate"); former elder statesmen Fritz Hollings; and, of course, Joe Kennedy Sr. [Me: Publius Point to anyone who can explain the connection between these people, particularly Cynthia McKinney and Joe Kennedy Sr.]

- 8/8 - And while Davis correctly condemns the poison flowing from his own side, this is a serious problem for the Left, not the Right. Our nuts are on the fringes; his nuts run the DNC, their PACs, and their think-tanks.

Tuesday, August 15, 2006

MORE ALLEN

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My theory on what happened -- Allen and team called this guy "macaca" behind the scenes and it slipped out in a moment of stupidity.

So, part of the "mohawk" story may actually be true. They were probably calling him something, just not "mohawk." And because macaca is a pretty random French slur, I'm guessing big George himself coined it.

GEORGE ALLEN: Class Act, Political Genius

You know, it’s hard to add much to this. It pretty much speaks for itself. As bad as the statement is, what’s even more troubling is that it shows how stupid George Allen is. He didn’t get caught whispering something in private. He — the presidential hopeful — looked straight-on to the camera and racially taunted the guy filming him. The political stupidity of that move alone should disqualify him from ever being president. Me: That guy should be in charge of Middle East diplomacy.

But putting aside the politics, the statement itself is very bad — and there’s no escaping it. As Atrios rightly noted, what Allen was doing here was making fun of the fact that a “foreigner” was among them (in reality, he was born in Fairfax County). That’s why the most degrading thing wasn’t so much the use of the term itself, but the condescending tone of this sentence: “This fellow here over here with the yellow shirt, Macaca, or whatever his name is.” Ha. Ha. That silly looking brown fellow with the funny name — just look at him over there. He’s with my opponent. That’s simply unacceptable for a Senator, and especially a Presidential candidate. These people are supposed to be held to higher standards.

And if there was any doubt, Allen put it to rest by saying “Welcome to America” and then calling him Macaca again. It’s not terribly surprising coming from Allen given his past, but it is surprising that he’d be stupid enough to say it to the camera.

I’m guessing this one is going to give George Felix Allen a headache for some time to come. And it should. But one development I would love to see is a counter-attack by the press on the post-fact spin. Brendan Nyhan is pretty much all over this, but listen to what Allen said in response:

Reached Monday evening, Allen said that the word had no derogatory meaning for him and that he was sorry. "I would never want to demean him as an individual. I do apologize if he's offended by that. That was no way the point."

Asked what macaca means, Allen said: "I don't know what it means." He said the word sounds similar to "mohawk," a term that his campaign staff had nicknamed Sidarth because of his haircut. Sidarth said his hairstyle is a mullet -- tight on top, long in the back.

Allen said that by the comment welcoming him to America, he meant: "Just to the real world. Get outside the Beltway and get to the real world."

Rrrright. Allen's campaign manager offered a similar story, which Nyhan correctly calls “preposterous.” Even if he had a mohawk (which he apparently doesn’t), that’s just insulting to everyone’s intelligence.

Journalists should start pushing back when they hear stuff this ridiculous. If nothing else, it would give incentives for non-ridiculous spin.

I was tempted to make a larger point about the failures of the "he said/she said" journalistic template here, but it's a pretty tough article. And the Post did put it on Page A1 where it belongs. So I'm not going to criticize. This should be a big deal, so kudos to the Post for recognizing it as such.

Monday, August 14, 2006

LAST BIT ON JOE

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Ok - I promise I'm going to stop for a while after this, but this RNC thing is really bugging me. Given the combined comments of Rove, Cheney, and Mehlman, it's clear that there was some sort of conscious decision either to run away from Schlesinger and/or to give some support to Lieberman. But why? What's in it for them?

Reading back over my explanations from last night, I'm not crazy about them. I fear I was overthinking it. There are a couple of simpler explanations.

First, maybe they actually like Joe and wish him well. I don't buy that though. It appears there was a coordinated strategy/message, which suggests it had some sort of purpose.

The more likely explanation is that they're keeping their options open by shunning Schlesinger. If Schlesinger stays, the race is Lieberman v. Lamont. Schlesinger has no chance so it's just throwing capital away. By supporting Lieberman, though, they have a stronger ally if he wins. There's no hope of working with Lamont, so they lose nothing there and gain everything by tacitly supporting Lieberman. On the other hand, they'd be idiots not to be thinking about putting up a real GOP candidate. So, by not endorsing Schlesinger, they keep that option open too. They can always turn on Joe if they need to.

That's why I was probably wrong to think Rove is "muscling" Joe to switch. That's not going to happen so long as Harry Reid has the good sense not to excommunicate Joe from committees and the caucus. So, I think the Rove/Mehlman strategy is more of a carrot to Joe, and less a stick.

That said, I do think it's the wrong decision. As I explained, I buy the argument that keeping Joe in hurts the Connecticut Three, but I doubt they're thinking that far in advance.

THE GAME THEORY OF LIEBERMAN-LAMONT

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I really wanted to put the CT race behind me, but it keeps getting more interesting. Post-primary, the game theory dimensions of this race and all its players are the electoral equivalent of crack for political junkies. Before I break down all the angles (somewhat ramblingly), let’s look at the lay of the land.

The new post-Bastille-storming Rasmussen poll shows the CT race as Lieberman (46), Lamont (41), and Schlesinger (6). In July, they were tied at 40-40 in a three-way race. According to the Rasmussen poll, Lieberman’s gain comes from Republicans. And on top of everything else, there is some rumbling that a real GOP candidate may try to take Schlesinger’s spot. When you add up all the different possibilities, it raises a number of interesting questions about what the different players’ electoral strategy should be:

Joe Won’t Go

Before I get going, one assumption I have is that Joe will not leave the race in a million years for the greater good of the Party, or the cause, or whatever. And so no one should try that argument on him. Joe will leave if he thinks he’s going to get beat and not a second earlier. He’ll of course say he’s leaving for the good of the party, etc. But that won’t be the truth. To convince Joe to leave, you have to show him he’s going to lose.

Joe and the RNC

Assuming the numbers in this Chris Bowers post are correct (which relies on Rasmussen), Joe has to win a very big chunk of Republicans to win. Thus, it is essential that a non-entity like Schlesinger remain in the race. In fact, Schlesinger (i.e., whether he stays or goes) is the key to everything. Thus, Joe’s primary strategy should be keeping Schlesinger in at any cost.

Enter the RNC. Despite all the talk of the Rove phone call, the truth is that the RNC has a vested interest in getting Joe out of the race. As Ezra wisely noted, a high-profile three-way race would – contrary to conventional wisdom – be the death blow to vulnerable GOP House members Shays, Simmons, and Johnson. Rest assured that the massive Dem turnout scared the bejesus out of these three – and rightfully so. They don't want a repeat in November.

So why are Rove and Mehlman playing footsie with him? Well, they may be trying to get him to switch parties or to caucus with the GOP. Thus, they might say: “If we push Schlesinger out, you lose. Wanna talk?” More likely, Mehlman’s refusal to endorse Schlesinger is part of an attempt to push him out so they can put up a candidate who could, you know, actually win if Joe and Lamont split the Dems. Or, and this may be too clever by half, they may want to put up a viable candidate in the hopes of pushing Joe out, which might save the CT Three by depressing turnout.

What they are not doing is supporting Joe because they love him. Joe probably thinks they do because his political brain has atrophied into a Schiavo-like condition. But they don’t.

Then again, maybe the all-mighty RNC just hasn’t thought this through. Unless there’s a realistic chance of “flipping” Joe, they have every reason to want him out of this race. Of course, if you’re really conspiracy-minded, you might think they’re purposely “helping” him to taint him. That, however, is too clever by half. The main goal of the RNC shouldn't necessarily be to defeat Lieberman, but to get him to drop out of the race to depress turnout and save the CT Three. If he’s still around on election day, they’ll lose three valuable House seats (likely permanently) regardless of what happens.

Joe’s Tactics

Joe’s really in a pickle in terms of his meta-strategy – particularly given that the appropriate strategy depends entirely on whether Schlesinger stays in.

The crux of Joe’s problem is that he needs a LOT of GOP votes to win. But, Connecticut is a liberal state and one that's gone very sour on Bush and the war. So Joe’s pickle is this – the tactics required to win and turnout GOP votes will necessarily piss off CT Dems and Indys. However, not using those tactics will cost him GOP votes. So what should Joe do?

In this situation, I think that his safest and best strategy is the “rise above the fray, new unity, anti-partisan” pitch. This message – largely because it’s devoid of substantive meaning – seems like the best way to keep together white working-class Dems, Indys, and moderate CT Republicans. Ironically, it would – as Hoagland noted – let him run as an outsider and tap into the anti-incumbent mood.

But Joe being Joe, he decided instead to mimic the talking points of Dick Cheney by implying that Lamont’s victory was a victory for al Qaeda. Osama: With Lieberman gone, nothing can stop us now. There are few things you can say to enrage Democrats more and Lamont should jump all over it. Joe forgets that he’s not fighting for Midwestern swing states, but for a plurality of Connecticut voters. See, supra, Schiavo reference.

I really don’t understand this tactic at all unless his emotions got the better of him. The one possible explanation goes something like this – Joe assumes he’ll have a set number of Dems and Indys who stay with him no matter what. Thus, Joe just needs to rally the GOP base for victory. So, his strategy is a mix of the Broder Unity theme accompanied by some Lamont/Lefty-bashing for the GOP base.

Two reasons why I think this strategy fails. First, his Dem/Indy support will start falling (this is Connecticut after all). Second, he simply can’t straddle this line. For instance, he's going to be asked about who he'd caucus with. The GOP won’t like it if he continues to say he'll caucus with the Dems. But, if he goes soft on that issue, the Dems will rush to Lamont. And I’m sure there are other issues like that too. It's just hard to rally the GOP base in Connecticut without offsetting costs.

It’s just an impossible situation for him to do anything but run against “partisanship” and against the “extremes” that have taken both parties. If he sticks with that message without the Cheney talking points, I’m genuinely curious to see how it will play. Hillary: So am I.

But . . . all that changes if Schlesinger leaves. If he leaves, then 25 to 30% of the state will vote for the new GOP candidate. In these circumstances, Joe’s only hope is to redo the primary. In other words, he would need to distance himself from Bush and be partisan. And of course, if that happens, then his enable-the-terrorists line will come back to bite him. But then again, maybe Joe has decided to go "all in" on the contingency that Schlesinger stays in. Who knows.

Sunday, August 13, 2006

"ISRAEL BEGAN WITH CHENEY"

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This is certainly my favorite passage in the new Sy Hersh article (and it's completely consistent with Suskind's book):

Earlier this summer, before the Hezbollah kidnappings, the U.S. government consultant said, several Israeli officials visited Washington, separately, “to get a green light for the bombing operation and to find out how much the United States would bear.” The consultant added, “Israel began with Cheney. It wanted to be sure that it had his support and the support of his office and the Middle East desk of the National Security Council.” After that, “persuading Bush was never a problem, and Condi Rice was on board,” the consultant said.

Friday, August 11, 2006

HIGH COMEDY

POLITICIZE TERRORISM

“You can't say, ‘Please don't be mean to me. Please let me win sometimes.’ Give me a break here[.] If you don't want to fight for the future and you can’t figure out how to beat these people then find something else to do.”

Lots of people are already complaining about the politicization of the London plot. Glenn Greenwald (via Benen) provides numerous examples from the right-wing blogosphere, which seized upon the news in record time. John Aravosis points to an article indicating that the White House knew of the plot last weekend (thus suggesting it coordinated its recent media strategy with it).

You know what I say to that — boo-frickin’-hoo. Get over it. The GOP politicizes terrorism — that’s what they do. They’ve been doing it for five years. They did it to start a war. They did it to win an election. And they’re going to keep doing it until they lose. People can moan and whine all day about how mean and unfair they’re being, or they can fight fire with fire and try to beat them. And so I’m not doing the obligatory “can’t we put partisanship aside in times like this” to show my reasonable centrism. Instead, I’ll take a stab at politicizing terrorism and say this — the failed UK plot illustrates why the people in charge of anti-terrorism policy shouldn’t be in charge of anti-terrorism policy anymore. It also demonstrates the utter failure of the Iraq War as anti-terrorism policy. And finally, it shows why Republicans should lose this fall.

To give credit where credit is due, this post is pretty much a riff off of this essential point that Yglesias made:

Bush says today's plots serve as a “stark reminder that this nation is at war with Islamic fascists.” If anything, it's a stark reminder of the reverse. A stark reminder that this isn't a “war” at all -- you don't foil a plot like this with armored personnel carriers and JDAMs. We're also not going to capture the capital city of "Islamic fascism" -- not Kabul, not Baghdad, not even Teheran and Damascus -- and force our adversaries to surrender.

It's not at all difficult to kill or capture terrorists. Instead, what makes them dangerous is that they're hard to identify.

I really can’t stress enough how important that last point is. This sounds obvious, but the key to any anti-terrorism policy in the post-9/11 world is to understand the nature of the threat against us. And it’s a serious one — and one (as Kevin Drum rightly pointed out) that the liberal blogosphere should focus more heavily on. It’s easy to lose sight of it in the dust and dirt from domestic political battles, but there are a lot of people out there who would kill us if they could.

The key then is to focus on the nature of that threat. The 9/11 hijackers share a lot of similarities with the UK would-be bombers (who I’m assuming are the real deal). They were not agents of any state — but were instead a group of alienated and unaffiliated Muslims financed by non-state actors. These individuals lived in liberal democracies and were essentially a criminal syndicate — a jihadist mafia operating in the shadows of a “free” country. This lends support to Yglesias’s point that the biggest threat to our safety is not an unwillingness to kill these people, but the inability to identify them (or to find them).

Any remedy for this serious problem needs to be tailored to fit the nature of the threat. Thus, what’s needed to keep us safe is, as Joe Biden rightly said, “gumshoe” work. Our safety depends on our ability to gather intelligence, to act on tips, to work leads, to aggressively monitor the movement of finances, etc. For that reason, effective policy really does closely resemble law enforcement activities.

Ron Suskind’s book (which I haven’t finished yet) provides a perfect illustration of how important these “law enforcement”-type activities are in protecting us from terrorism. For instance, assuming it’s brought within some sort of legal and judicial framework, his book persuaded me that the “terrorist surveillance program” is a good thing. Putting aside its blatant illegality, the real problem with the current NSA program is how inefficient it is. Monitoring everyone’s calls and emails for “clues” is just a big waste of time. But, as Suskind explains, if you know what you’re looking for, it’s fantastic. For instance, if you know someone’s name, or have a specific site or phone line of a known terrorist, the program is a highly effective way to identify the threads of the broader web (again, just like in any criminal conspiracy). The better the inputs, the better the outputs. And so what’s really important is getting the inputs (the name, the tip, etc.).

Given that anti-terrorism (like crime) depends so heavily on tips and intelligence, Suskind’s book also shows just how vital foreign cooperation is to our domestic safety. Not only do we need information that these governments have access to (both financial and “human intelligence”), we need them to help execute searches or, if necessary, to help with captures or assassinations.

And that brings us to Iraq. The fact that Iraq was so incompetently executed is actually the least of its problems. The bigger problem is that the idea of it represented a staggering failure of vision and judgment in terms of anti-terrorism policy. It’s simply not possible to devise an anti-terrorism policy more at odds with the nature of the threat facing us.

First, invading countries and overthrowing regimes does nothing — not one thing — to address the primary problem, which is the inability to identify the people who want to kill us. Second, it actually exacerbates the “root” problem by increasing the number of alienated people and intensifying their anger. Blair and his New Labour Party aren’t exactly oppressive despots, but that didn’t seem to help things much with these guys. Third, pissing off the countries of the world (almost all of whom have an interest in keeping al Qaeda at bay) deprives us of vital intelligence and cooperation. Hint — to combat Muslim terrorism, you’ll need help from Muslim governments more than anyone else. And those are just the problems with the idea of the war — I'm not even considering for now Gitmo, Abu Ghraib, and our fiddling while Israel burns Lebanon. Finally, and as Suskind explained, the war sucked up resources from the real anti-terrorist efforts.

And so there’s a pretty clear difference here that I’m sure some consultant could dress up in purty “clear choice” language. The argument would be that the Dems and the GOP have two fundamentally different ways of fighting terrorism. The GOP believes in fighting terrorism by invading countries and attempting to impose democracy at the point of a gun, which will then through some Rube Goldberg-esque logic lead to less terrorism. The Dems favor a focus on identifying the terrorists through things like intelligence and multi-lateral cooperation. Yes, that’s grossly simple, but it's generally accurate. The neocons fundamentally believe that invading Iraq and Iran are effective anti-terrorism policies. And it’s really hard to overstate just how completely absurd that is. Even if you were sympathetic in 2002, reality should have intruded by now.

In sum, these people simply can’t be trusted with our national security. Let's stop crying and start saying so.

Thursday, August 10, 2006

THE VALUE OF LEAKS

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I haven't had a chance to read up on the latest bombing scare, but it sounds legitimate and pretty disturbing. But I need to learn more before I jump in.

Maybe this is a stretch, but one reason I take warnings from the UK more seriously is because of the heavy leaking from high-level British officials. The idea is that people are less likely to orchestrate something like this as a political stunt if they think there’s a real possibility that the players involved might leak what they’re doing.

So, while it’s true that leaks have their costs, I think the deterrent benefits more than offset those costs.

Wednesday, August 09, 2006

MORNING EDITION

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Legal Fiction Times

Since 2004

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KARL MARX RISES FROM DEAD; COMMITS SUICIDE

New Haven, CT. The corpse of Karl Marx, father of communism, emerged from the ground around 11:15 EDT last night near Beinecke Library on the campus of Yale University, where his body is maintained in a shrine. Around midnight, just forty-five minutes later, he crawled back in his tomb and shot himself, according to local residents, eyewitnesses and a senior administration official who requested anonymity so he could speak freely.

Yale student Joe Smith (TC ’07), member of the Alpha Epsilon Pi fraternity, witnessed Marx's resurrection. “My friend and I were smoking cigarettes on the porch and we heard this loud thunder and then the ground, like, cracked open and this bearded scraggly-looking dude walked out. And it was Karl Marx. I took Western Intellectual History at Phillips, so I knew who he was.”

According to Smith, Marx approached him and asked where he could find the Revolution. “He told me he’d risen from the dead because the Left had seized power in Connecticut. He said he wanted to be a part of it.”

Smith pointed him to the local Lamont headquarters on Church Street. Around 11:30, Marx arrived at the raucous Lamont headquarters where he was enthusiastically greeted by goateed activists wearing black turtlenecks, smoking cloves, and speaking in French. “I have come for the Revolution,” Marx explained.

The volunteers invited Marx inside and introduced him to the crowd. Allegedly drunk, the coordinator of Lamont’s New Haven headquarters, Osama Churchill, invited Marx to speak to the crowd. After offering warm praise for the Revolution, Marx explained: “Tonight we have witnessed the rise of the Left and the beginning of the Revolution. Tonight, we have brought the capitalist swine to their knees. Indeed, it makes me particularly proud that our first triumph was over the grandson of a partner of that notorious robber baron, J.P. Morgan. I have long hated that man. And even better, I hear he was a telecom executive too. If we can take down pig-dogs like this, there is no limit . . . .”

Mr. Churchill then interrupted Marx’s speech and whispered something in his ear. Although it was unclear what he said, audience members stated that Marx looked stunned and stormed out of the building. Mr. Churchill did not return phone calls yesterday.

According to local residents, Marx left Lamont Headquarters and walked back towards his warm grave. “He just suddenly re-appeared,” Smith explained, “and he was mumbling and grumbling about something. I couldn’t make it out, but I thought I heard him say 'fuckin' Pierpont.' But I can’t be sure.” Smith explained that Marx then crawled back in the tomb.

THOUGHTS ON LAMONT

All over but the cryin’ — Lamont is the Democratic nominee. Dios mío. I suppose the million dollar question is what it all means. Not sure, but here are my scattered thoughts and observations:

Little-“d” Democracy

Regardless of how you feel about the election or its implications, Lamont’s victory is rather amazing from an institutional perspective. Yes, Lamont was rich and that helped. But look what Lieberman had going for him — 18 years of incumbency, national name-recognition, a war chest, the national Democratic establishment, Bill Clinton, and major institutional players such as the AFL-CIO. Against that you had a hodge-podge of local activists and volunteers, with a key assist from people like Maxine Waters. I suppose I'm simplifying and romanticizing, but still, these things just don’t happen. Indeed, they almost can’t happen, just as a matter of physics.

Listen to Ezra

It’s hard to predict what the ripple effects will be, but I agree 100% with Ezra Klein that one of the effects will be to make gratuitous Dem-bashing by Dems a politically dangerous action:

Rather than requiring submission to a certain set of policy initiatives, [the blogofascists will] demand unity in certain moments of partisan showdown. What so rankled about Lieberman was his willingness to abandon ship when steady hands were most necessary -- he was always the first to compromise on judicial nominees, or flirt with Social Security privatization, or scold critics of the Iraq War. His current plight is evidence that such opportunistic betrayals will not, in the future, go unpunished. On July 7th, being the Democrat who criticizes Democrats ceased being safe. . . .

Future Democrats seeking a slot on the Sunday shows to proudly trumpet their heterodoxy will have flashbacks to Joe Lieberman, looking stung and defensive on that stage, seeing his thirty years of service torn apart by a much-blogged-about dweeb named Ned. The effect of this will not necessarily be a more liberal Democratic party, but a more unified one. Partisan pride, not progressive policies, will be the currency with which savvy incumbents pay off the angry online villagers.

Precisely. The Lamont victory isn’t going to tear the party apart, it’s going to unify it, partly out of fear, which is how the GOP maintains unity.

In fact, if I may speak on behalf of the blogofascists, we’re not asking for a lot. We’re certainly not asking for doctrinaire loyalty. If you disagree with the party, fine. Great, in fact. But let’s get over the whole gratuitous Dem-bashing just for the sake of appearing conspicuously centrist. That’s what annoys us. We’re tired of it. We’re tired of Marty Peretz. We’re tired of Marshall Wittman. If you don’t like the party, leave. If you think “the Left” is a bigger problem than the people currently running our country, there’s the door buddy. (At the very least, please stop appearing in high-profile media outlets to give the “disgruntled Democrat” quote.)

In addition, we’re tired of cowardice. We want elected officials to stop apologizing for being Democrats in the face of massive policy failures. We’re tired of the Rose Garden. We’re tired of Dick Durbin crying on the Senate floor for denouncing torture. We’re tired of people acting scared and trying to meet people in the middle that have no intention of reciprocating. Bipartisanship is a pre-9/11 worldview — at least until the GOP loses power. Lieberman simply didn’t understand the new world that Rove built.

Winning Matters

Having agreed with almost all of Ezra’s article, I’ll have to disagree with this:

[W]hether Lamont wins or loses tomorrow is almost entirely immaterial to the political triumph of the netroots. . . . The netroots won the moment Joe Lieberman felt fear. With the netroots having proved they can generate an existential challenge to a safe-seeming incumbent, actually defeating Lieberman would be little beyond icing on the cake.

Winning is what matters. Close don’t count — not in this game. The reason the Lamont victory will ripple through the party is because Lieberman lost. The main problem with Ezra’s argument is that it underestimates the dynamic effect of a victory or a defeat. The actual result completely alters the status quo. Victories energize and command attention. Defeats deflate and cause people to forget.

Just look at Schmidt and Bilbray. Did the GOP radically change course when these candidates “almost” got beat. No — they felt free to ignore it, while the opponents’ momentum totally deflated. (Heard the name Hackett lately?) Specter, by contrast, is acting like a coward not because of the lingering effect of the primary, but because he fears having his big Chair pulled out from under him (sort of like on the old MTV show Remote Control).

If Joe won, he goes right back to being arrogant, self-righteous Joe. The anti-Lieberman netroots movement would have been demoralized and belittled by the same people who will now call them crazed kingmakers. In fact, it’s possible that a Lamont defeat would have made things worse. Other Dems might have said, “hell, if Lieberman can get away with that crap in Connecticut, why should I worry?” But defeat has a way of commanding attention.

[B]esides the Democrats and the Republicans, there are the swing voters, the people in the middle--except that Rove hates that frame of reference, with its implication that politics entails persuading wishy-washy centrists by offering them broad, vague, moderate sentiments. “There is no middle!” Rove told me once; his mind is engaged in looking for groups that other consultants haven't discovered yet, and then figuring out what their particular passions are. In another conversation, be said, “‘Middle’ is the wrong word. ‘The unattached’ is a better way of putting it. Because to say ‘the middle’ implies that they are philosophically centrist in outlook, and they aren’t. Some of the people who are unaffiliated are on the left. Some of the people who are unattached are on the right. Some of the people who are unattached are hard to characterize philosophically at all on the traditional left right continuum.”

The implication of all this is that the key to winning election is not so much dulling the edges to win the wishy-washy centrist, but to energize the unattached and disengaged. The math of it is that the increase in excitement will more than compensate for the “centrists” you might alienate.

The Lamont victory (and the Bush victory, frankly) seems to support that model. The reason Lamont won was a surge of excited, if angry, voters. And it wasn't just voters — there was also a surge of volunteers and activists who put their heart and soul in this campaign. And that’s largely because Lamont was willing to run pretty hard against the war. Of course, that position is going to alienate some people — but Lamont more than compensated by the people it brought in. The war made the unattached attached.

That’s why people like Casey and Clinton are going to have a harder time in the general than they expect even though they’re so conspicuously centrist. Who is possibly going to be excited about voting for either of them? Both of them are where they are because of their name recognition, and both have a bad case of being chickenshits on the things Dems really care about. Why would anyone be motivated to go vote for them — much less work for them? (Same deal for Cantwell, who is in trouble not for being too liberal, but for being cowardly). And that leads to the last point . . .

Hillary

Perhaps the person most interested in tonight’s results was Hillary Clinton. This was a big wake-up call that she needs to make some changes before she starts her run. Money and establishment-backing is still the most important thing, but it’s no longer sufficient in high-profile elections. Especially with all these bloodthirsty blogofascists running around with guillotines.